State v. Zimmerman

Petitioner
Richard W. Zimmerman, by counsel Matthew Brummond, appeals
his August 26, 2016, conviction of one count of sexual abuse
in the first degree, in violation of West Virginia Code
§ 61-8B-7(a)(1). Respondent State of West Virginia, by
counsel Shannon Frederick Kiser, filed a response in support
of the circuit court's order. Petitioner argues that the
circuit court erred in permitting the introduction of
evidence of petitioner's lustful disposition towards
children where the victim at issue was over the age of
consent, per West Virginia Code § 61-8B-2, but under the
date of majority.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21(d) of the Rules of Appellate Procedure.

In
February of 2016, a friend of petitioner's daughter
("victim"), accused petitioner of sexually abusing
her while she was an overnight guest at petitioner's
residence. At the time of the alleged abuse, the victim was
seventeen-years-old, the same age as petitioner's
daughter. Petitioner denied the sexual abuse allegations and
stated that the contact between himself and the victim was
consensual. During her trial testimony, the victim testified
that on the night in question, petitioner returned home in
the early morning hours to find his daughter and several of
her friends asleep in the living room of the residence.
Petitioner awoke the sleeping victim by throwing dog toys at
her from an adjoining room.

When
the victim stirred, petitioner approached the couch on which
the victim was sleeping and began tickling her feet. The
victim testified that she asked the petitioner to stop and he
replied, "Stop me." Petitioner then put his hands
inside the leg of victim's sweatpants and began rubbing
one of her legs. He then lifted the victim's shirt and
tickled her stomach. The victim testified that she again
asked petitioner to stop. Petitioner responded to the
victim's request to stop by placing his hand over her
mouth to stifle her speech. Petitioner then began licking the
victim's stomach and urged her to come with him to his
bedroom. When the victim refused, petitioner pulled her by
her arm to his bedroom. The victim testified that she
discreetly attempted to wake the other sleeping girls but was
unsuccessful.

Once in
petitioner's bedroom, the victim testified that
petitioner closed the door and immediately "climbed
atop" her. Petitioner lifted her shirt and began licking
her stomach and breasts. Petitioner pulled down the
victim's sweatpants and underwear and digitally
penetrated her sex organ. Petitioner requested that the
victim have sexual intercourse with him, but she refused. The
victim then told petitioner she would return to him the
following day and he permitted her to leave. Upon leaving
petitioner's room, the victim woke another girl who had
been sleeping in the bedroom of petitioner's daughter.
The victim, then crying, told the girl that petitioner had
been "touching [her], " and asked for a ride away
from petitioner's home. The victim then left
petitioner's home. Thereafter, petitioner began
communicating with the victim by telephone and asked for nude
pictures of her and for her to return to his residence.

In
early May of 2016, petitioner was indicted on one count of
sexual assault in the second degree and one count of sexual
abuse in the first degree related to his contact with the
victim in February of 2016. During discovery, the State filed
a notice to use evidence pursuant to Rule 404(b) of the West
Virginia Rules of Evidence. Specifically, the State sought to
introduce evidence of petitioner's prior domestic battery
charge against his former wife and evidence of
"inappropriate text messages received by three
individuals, two of who were minor children at the time of
the incident in question." The State argued that this
evidence established petitioner's lustful disposition
towards children. Petitioner argued that such evidence was
improper as it showed petitioner's "lascivious acts
towards individuals" who were adults, despite being
legally classified as minors, and showed no lustful
disposition towards children.

In
accord with State v. McGinnis,193 W.Va. 147, 455
S.E.2d 516 (1994), a hearing was held on the State's
404(b) notice on August 3, 2016. Several witnesses offered
testimony at the hearing including, A.R. (sixteen-years-old
at the time she received a sexually suggestive text message
from petitioner), Z.W. (a sixteen-year-old who received a
sexually suggestive text message from petitioner), Z.W.'s
mother, Z.W.'s uncle, and the victim.

A.R.
testified that she received a text message from petitioner,
in which he stated, "I just picture you on my couch with
those short a** shorts on, but in my mind they weren't
there." A.R. did not report petitioner's
inappropriate text to anyone, but blocked petitioner's
telephone number from further contact. Z.W. testified that
she received text messages from petitioner, including one
that stated she looked "sexy as hell." Z.W.
testified that she sent the message to her mother, who
contacted petitioner. The mother of Z.W. testified that when
her daughter reported receiving sexually suggestive messages
from petitioner, she contacted petitioner who blamed the
messages on his son. Petitioner's son called to apologize
for the messages, but Z.W.'s mother did not believe that
petitioner's son sent such messages, as the messages
referred to her daughter by a nickname which only petitioner
called her. Z.W.'s uncle testified that petitioner later
apologized to him for sending Z.W. inappropriate text
messages. The State argued that Z.W., A.R., and the victim
shared similar physical features and characteristics.

By
order entered August 10, 2016, the circuit court granted in
part, and denied, in part, the State's request to admit
404(b) evidence at trial. Specifically, the court denied the
admission of 404(b) testimony regarding petitioner's
former wife. However, the court ruled that the text messages
sent by petitioner to A.R. and Z.W. were admissible as they
showed petitioner's lustful disposition towards other
children, occurred reasonably close in time to the incident
involving the victim, and involved children similarly
situated to the victim. The court found that the probative
value of such evidence substantially outweighed any perceived
danger of unfair prejudice.

On
August 24, 2016, petitioner's trial commenced. At trial,
the victim testified, along with petitioner's daughter
who acknowledged she saw the text messages sent by petitioner
to the victim. Next, 404(b) witness A.R., testified. Prior to
her testimony, the court read a limiting instruction to the
jury.[1] The next witness to testify was Z.W.,
another 404(b) witness. Again, prior to Z.W.'s testimony,
the court again provided a limiting instruction to the jury.
Several additional witnesses were called by the State,
including the investigating officer and petitioner's
girlfriend. Ultimately, petitioner was acquitted of the
sexual assault of the victim, but was found guilty of the
charge of sexual abuse in the first degree. It is from his
August 26, 2016, jury conviction that petitioner now appeals.

On
appeal, petitioner argues that the circuit court erred in
permitting the introduction of 404(b) evidence relating to
petitioner's lustful disposition towards children at
trial. As to a trial court's rulings on the admission of
improper evidence, we have found that "[a] trial
court's evidentiary rulings, as well as its application
of the Rules of Evidence, are subject to review under an
abuse of discretion standard." Syl. Pt. 4, State v.
Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).
Accord Syl. Pt. 5, State v. Gibbs, 238
W.Va. 646, 797 S.E.2d 623 (2017).

Further,
we have long held that

[w]here an offer of evidence is made under rule 404(b) of the
West Virginia Rules of Evidence, the trial court, pursuant to
Rule 104(a) of the West Virginia Rules of Evidence, is to
determine its admissibility. Before admitting the evidence,
the trial court should conduct an in camera hearing
as stated in State v. Dolin, 176 W.Va. 688, 347
S.E.2d 208 (1986). After hearing the evidence and arguments
of counsel, the trial court must be satisfied by a
preponderance of the evidence that the acts or conduct
occurred and that the defendant committed the acts. If the
trial court does not find by a preponderance of the evidence
that the acts or conduct was committed or that the defendant
was the actor, the evidence should be excluded under Rule
404(b). If a sufficient showing has been made, the trial
court must then determine the relevancy of the evidence under
Rules 401 and 402 of the West Virginia Rules of Evidence and
conduct the balancing required under Rule 403 of the West
Virginia Rules of Evidence. ...

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